Navigating the Legal Tides: Workplace Recordings and Screening Job Candidates with Criminal Histories

LaToya and Loden presented these topics at Phelps’ Annual Mississippi Labor and Employment Seminar in Gulfport, Miss.

We are going to discuss workplace recordings and screening job candidates with criminal histories.

WORKPLACE RECORDINGS

Employers need to be aware that employees may be recording conversations in the workplace. Think about:

• Can an employee be disciplined for secretly recording workplace conversations?
• Are these conversations protected if they are meant to gather evidence for discrimination and harassment claims?
• Could an employee face legal penalties for violating federal wiretap laws or corresponding state law by secretly recording others in the workplace?
• Can secretly recording workplace conversations result in civil liability for invasion of privacy?

People use smartphones, small handheld digital recorders, hidden tape recorders and even Dictaphone machines to record. We are seeing smaller devices like pens. You need to anticipate that almost every conversation you are having with an employee is being recorded.

In one case, an employee used a pen with a tiny digital voice recorder to secretly record conversations. His supervisor didn’t know he was being recorded. The company did not have a handbook provision that banned workplace recordings. In another case, an employee used a pocket recorder in his pocket to record conversations over a three-year span.

Document, Document, Document

If you don’t put it in writing, does it exist? No.

These cases remind us that we need to document our policies and our meetings with employees. Recordings make it even more important that we document. One thing we know about recordings is that if I am the person recording, I have the ability to manipulate that recording.

We also want to keep our employee meetings brief and to the point. Have your talking points written down and stick to them during the meeting.  You are not required to give an explanation for every decision that you are making.

No-Recording Policies

Employees generally have limited protection against being punished for secret recordings.

Lawyers and human resources officers often advise to ban secret recordings to foster open communication in the workplace. That said, there are legal implications that must be considered, such as the National Labor Relations Act (NLRA) and the First Amendment.

Employers have legitimate reasons to ban secret recordings. These include:

• Privacy protection: Safeguard the private nature of workplace communications.
• Trust and morale: Encourage trust and boost employee morale.
• Confidentiality: protect confidential business information.
• Trade secrets: Secure trade secrets and proprietary information.

In Hudson v. Blue Cross Blue Shield of Alabama, an employee was fired for violating her company’s no-recording rule. In this case, the recording was not allowed without prior approval of the company president and/or the vice president of human resources. The employee had alleged racial and gender discrimination and secretly recorded conversations to prove a claim under Title VII. The Eleventh Circuit said the employee still violated the policy.

National Labor Relations Act and No-Recording Policies

No-recording policies are generally lawful and can be enforced with limited judicial oversight.

Keep in mind, these policies might conflict with certain employee rights under the National Labor Relations Act (NLRA). The NLRA is not limited to unionized workplaces. It governs private-sector labor relations. It does not extend to federal, state or local government employees.

Section 7 of the NLRA allows employees to form a union and join together in concerted activities for the purpose of mutual aid and protection. Section 8(a)(1) prohibits employers from interfering with employees’ Section 7 rights.

A single employee’s act of recording a workplace conversation to support an individual claim of discrimination and harassment likely does not trigger NLRA protection.

Secret Recordings as Workplace Misconduct

In many workplaces, especially those with written no-recording policies, secretly recording a conversation can be deemed workplace misconduct. Violating a no-recording policy can lead to termination, even if the recording supports claims like:

• Sexual harassment
• Discrimination and
• Retaliation.

It is important to apply these policies fairly and equitably across the board.

Also, keep in mind, Title VII does not protect employees from discipline if they record conversations to support discrimination or harassment claims. Courts have mostly ruled in favor of employers on these issues.

Sometimes employees will not follow a company’s complaint procedure and will secretly record conversations that they submit later. This is still a violation of company policy.

When this happens, employers can use the Faragher-Ellerth affirmative defense in court. This defense requires proving two parts:

• Employer responsibility: the employer exercised reasonable care to present and correct promptly any sexually harassing behavior and
• Employee responsibility: the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities given by the employer or to avoid harm otherwise.

Legal Ramifications

Potential ramifications of secretly recording in the workplace include violations of federal wiretap laws and tort claims under state law.

The Federal Wiretap Act is a one-party consent law. It allows for a conversation to be recorded if the:

• Person recording is an actual participant in the conversation or
• Someone else records a conversation with the consent of one of the conversation’s participants.

States do consider liability under torts such as the tort of invasion of privacy in Mississippi and we are seeing individuals recording others being sued for invasion of privacy.

Key Takeaways

• No-recording policies are generally lawful. They can be enforced against offending employees with limited judicial oversight.
• When an employee violates a no-recording policy, which are commonplace, they will likely be disciplined by their employer for their misconduct.
• Courts have ruled that violating an employer’s no-recording policy can justify an employee’s termination, regardless of whether the recorded content supports the employee’s claim of discrimination or harassment.
• Employers can enforce no-recording rules even in states where wiretap laws permit the recording of a conversation with the consent of only one participant.
• In certain circumstances, employees who engage in workplace spying may find themselves personally liable for those actions under wiretap laws.
• When an employee secretly records workplace conversations, that action could lead to liability under the tort of intrusion, even if that tort claims is based on the same facts as an accompanying wiretap claim.

SCREENING JOB CANDIDATES WITH CRIMINAL HISTORIES

Equal Employment Opportunity Commission (EEOC) Guidelines

Employers sometimes want to consider the backgrounds of applicants and employees when they make personnel decisions such as hiring, retention, promotion and reassignment.

Some employers might try to find out about the person’s work history, education, criminal record, financial history, medical history or use of social media. Except for certain restrictions related to medical and genetic information, it is not illegal for an employer to ask questions about an applicant or employee’s background or to require a background check.

But any time you use an applicant or employee’s background information to make an employment decision, you must comply with federal laws that protect applicants and employees from discrimination. That includes discrimination based on:

• Race
• Color
• National origin
• Sex
• Religion
• Disability
• Genetic information (including family medical history) and
• Age (40 or older)

When you run background checks through a company in the business of compiling background information, you must comply with the Fair Credit Reporting Act (FCRA), which the Federal Trade Commission (FTC) enforces.

In all cases, treat everyone equally.

It is illegal to check the background of applicants and employees when that decision is based on a person’s race, national origin, color, sex, religion, disability, genetic information or age. For instance, asking only people of a certain race about their financial histories or criminal records is evidence of discrimination.

Do not try to get an applicant or employee’s genetic information, which includes family medical history. And don’t use it to make an employment decision.  Don’t ask any medical questions before a conditional job offer has been made. And if the person has started the job, don’t ask medical questions unless you have objective evidence that he or she is unable to do the job or poses a safety risk because of a medical condition.

Fair Credit Reporting Act (FCRA) Guidelines

Many times, employers will use third-party service providers known as consumer reporting agencies (CRAs) to get information about an applicant or employee. Employers must follow the FCRA’s disclosure rules. Generally, there are three steps.

• First: The employer provides notice to the candidate that it will be getting a consumer report about that individual and looking at it.
• Second: The employer must also get the individual’s written consent to do that.
• Third: The employer must certify to the CRA that it will comply with disclosure and adverse action requirements of the FCRA and will not use the information provided to violate equal employment opportunity requirements.

Using Background Information
In general, any background information you receive from any source must not be used to discriminate in violation of federal law. This means you should apply the same standard to everyone, regardless of their race, national origin, color, sex, religion, disability, genetic information or age.

Keep in mind, FCRA has additional rules to follow if an employer takes an adverse action —not hiring an applicant or firing an employee — based on background information obtained from a CRA.

Before the employer takes an adverse action, they must give the applicant or employee:

• Notice of the adverse action.
• A copy of the consumer report and a written summary of consumer rights.
• Time to review these items and respond, which is usually seven business days.

After taking the adverse action, the employer must make more disclosures under the FCRA. These include:

• Notice concerning the adverse action.
• Notice of the individual’s credit score (if used in taking the adverse action)
  • Range of credit scores under the credit reporting system used
  • Key factors adversely affecting the individual’s credit score
  • Date credit score was created
  • Name of the CRA that gave the credit score to the employer
  • Contact information for CRA (name, address, phone number)
  • A declaration that the CRA can’t provide specific information about the reasons underlying the adverse action and that it didn’t make the decision itself
  • Notice of the individual’s right to contest the contents of the consumer report with the CRA.

 Ban-the-Box Laws

Ban-the-box laws, also known as fair chance laws, restrict employers from asking about an applicant’s criminal background at various of the hiring process. The laws are designed to ensure fair hiring practices and to give a second chance for individuals with a past criminal arrest or conviction records.

There is no federal ban-the-box law generally applicable to private-sector employers.

President Donald Trump signed into law the Fair Chance Act in 2019 that prohibits federal agencies and government contractors from asking about an applicant’s criminal history before making a conditional job offer, unless a specified exception applies. But, there are exceptions for positions regarding law enforcement and national security and that by law require an employer to conduct a criminal background check before making a conditional job offer.

Many states and local municipalities have enacted ban-the-box laws, but the laws vary in detail.  

Best Practices for Screening Job Candidates with Criminal Histories

In 2012, the EEOC issued guidance on employer use of criminal records and suggests there are two ways employers might violate Title VII when screening:

• Treating job applicants with the same criminal records differently based on their race, color, religion, sex or national origin (disparate treatment discrimination) and
• Disproportionately excluding certain job applicants or employees with criminal histories even where the employer applies criminal record exclusions uniformly (disparate impact discrimination).

Per the EEOC, there is a risk that relying on criminal background checks for employment purposes may have a disproportionate impact on candidates who are members of a protected class.

The EEOC also recommends employers treat arrests and convictions differently. Arrests do not establish that criminal conduct occurred. Convictions, however, generally may be regarded as sufficient evidence that the individual had engaged in the criminal activity in question.

When it comes to disparate impact claims, after an employee has shown the existence of this, the burden shifts to the employer to show that despite the disparate impact, the practice is consistent with business necessity and related to the job in question. There are three factors relevant to this determination, according to the Eighth Circuit:

• The nature and gravity of the offense or conduct.
• The amount of time that has passed since the offense or conduct or completion of the offender’s sentence and
• The nature of the job held or sought.

Please contact LaToya C. Merritt, Loden Walker or any member of the Phelps Labor and Employment team if you have questions or need advice or guidance.